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‘Freedom Of Navigation’: The US Is Undermining Its Own Position – Analysis

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The U.S. has long maintained that freedom of navigation (FON) for warships in foreign 200 nautical mile Exclusive Economic Zones (EEZ) is essentially ‘absolute’.   China and some other countries disagree and have placed some restrictions on the activities of foreign warships and aircraft in their EEZ.  But the U.S. is undermining its own position by placing restrictions on its own military’s activities –and by extension those of foreign militaries—in its own EEZ.

Military activities in the EEZ were a controversial issue during the negotiation of the text of the 1982 UN Convention on the Law of the Sea (UNCLOS) http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm and continue to be so in state practice.  Some coastal states contend that other states cannot carry out military exercises or maneuvers in or over their EEZ without their consent.  Indeed, Bangladesh, Brazil, Cape Verde, Pakistan, Malaysia, Myanmar, Uruguay, and most recently, US ally Thailand have declared that such military activities are not permitted in their EEZ without their consent. This is an extreme position that is protested and often tested by the U.S. and other maritime powers.

A more moderate but still contentious aspect of this debate is whether or not coastal states like China have the right to limit foreign military activities in their own EEZs if they present a threat to its marine environment.  For the U.S. to impose its own restrictions on such activities in its own EEZ is contrary to its position that FON for warships and warplanes in foreign EEZs cannot be restricted.

However, that is exactly what has happened. The U.S. has now designated a critical habitat for the main Hawaiian Islands insular false killer whale encompassing 17,500 square miles of waters around Hawaii extending well into the US EEZ.  https://www.gpo.gov/fdsys/pkg/FR-2018-07-24/pdf/2018-15500.pdf.   The habitat must be “free of anthropogenic noise that would significantly impair the value of the habitat for false killer whale use or occupancy.”  This presumably includes the use of explosives and potentially damaging sonar. This is a significant signpost in this long-standing debate in the U.S.—and the world at large. It is not the first such step– and it won’t be the last.

Applicable US law provides that “all U.S. armed forces activities and exercises shall be carried out in a manner that avoids, to the extent practicable and consistent with operational requirement, adverse impacts on resources and qualities” https://www.gpo.gov/fdsys/pkg/FR-2018-07-24/pdf/2018-15500.pdf In 2013, a federal judge sided with environmental groups in their lawsuit against the U.S. government over Navy training exercises off the West Coast involving sonar that they say harms endangered whales, dolphins and other protected marine mammals.   Intertribal Sinkyone Wilderness Council v. National Marine Fisheries Service; http://www.allgov.com/usa/ca/news/california-and-the-nation/federal-judge-tells-navy-to-back-off-north-coast-sonar-testing-plan-130927?news=851241  . Under a negotiated agreement, the US Navy will no longer carry out these tests or training exercises, nor set off explosives, in specified habitats around the Hawaiian Islands and southern California.

The U.S. also has a total of 14 national marine protected areas encompassing nearly 800,000 square miles.  Much of that is in its EEZ and includes sensitive marine ecosystems in waters off American Samoa, Hawaii, California and Texas https://en.wikipedia.org/wiki/United_States_National_System_of_Marine_Protected_Areas.  Designation as a protected area does not automatically prohibit military activities.  But some protected areas do ban activities that disturb marine mammals, seabirds and sea turtles and even operation of aircraft over certain zones.

Restrictions on military activities in EEZs to protect the environment is a legal trend—at least in the U.S.—and may serve as a precedent and model for other countries –including China. Environmental groups say mid-frequency sonar use by the US Navy has been linked to fatal mass strandings of marine mammals around the world, including in the Bahamas, Greece, the Canary Islands, and Spain.

The balance between protection and activities necessary to maintain ‘military readiness’ is subject to “consultation” between the Pentagon and the appropriate agency to “minimize the impacts of their activities and ensure they are not likely to jeopardize the species.”  Of course this clause opens a large loophole.  Nevertheless it is clear that the U.S. military and that of other nations are being ‘encouraged’ to avoid environmentally deleterious activities within the designated areas – like mammal-damaging sonar, live fire and the detonation of explosives.

However, the U.S. continues to assert its expansive interpretation of FON as well as and to carry out intelligence, surveillance and reconnaissance missions in others’ EEZs. They do this despite protests by some countries including China that say some of these activities may be violating its domestic laws regarding, among others,  protection of its environment.  They also say that such activities do not pay ‘due regard’ to the rights and duties of the coastal state as required by UNCLOS, especially their right and duty to protect their environment including its fish,  mammals and their habitat and ecosystems. The U.S. vigorously protests in word and deed these attempts to limit FON.

But what does the international Law of the Sea community say about this issue? State practice and authoritative commentators are divided on whether military maneuvers, and particularly those involving the use of weapons, in the EEZ of a foreign state without its consent are internationally lawful uses of the sea.  They generally agree that simple naval transit and maneuvers are part of FON.  But they do not agree on whether an extended test of weapons, such as laying of depth charges, launching torpedoes, firing artillery or the laying of mines within an EEZ are included among the ‘normal uses associated with the operation of ships and aircraft.’  But if the military activities involve live firing, explosives or sonar that may interfere with or damage mammals and fisheries directly or indirectly, the balance of interests established by UNCLOS (Article 59, Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf) would likely weigh in favor of the coastal state.  While the latter could easily justify its right and responsibility to ensure the management of its resources and the protection of its marine environment, the user state would have the more difficult task of  explaining why its operations have to be conducted within that particular EEZ, and not on the high seas or within its own EEZ.

Indeed, one of the lead negotiators on the Law of the Sea for the developing countries, Orrego Vicuna, has stated “that the limitations of military uses in the exclusive economic zone are greater than those applied to similar activities carried out on the high seas”, and that a coastal state could “demand that a warship abandon the exclusive economic zone” if it failed to respect coastal state concerns. (O.F. Vicuna, The Exclusive Economic Zone, Cambridge University Press, Cambridge, 1989, p. 111); http://www.dtic.mil/dtic/tr/fulltext/u2/a457969.pdf

The U.S. or other countries may invoke customary international law that warships have immunity from coastal state jurisdiction.  But UNCLOS provides that countries operating such warships are liable for any environmental or other damage caused by their operations.  The fact that user states would be liable for damages is an ‘encouragement’ to refrain from such activities.

Clearly, constraints on military activities in foreign EEZs to protect the environment are expanding and the U.S. is contributing to this movement.  The U.S. Navy should try to get ahead of the curve and cease its resistance to this trend and act preemptively to alter or relocate its more egregious environmentally damaging activities in other states’ EEZs. It should then negotiate guidelines that it can live with.

*Mark J. Valencia, Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China

This piece appeared in the IPP Review https://ippreview.com/index.php/Blog/single/id/784.html


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